DILSHAD AHMAD Versus SARWAT BI

This is a Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The facts giving rise to the above petition, briefly stated, are that the respondent Mst. Sarwat Bi filed a suit for dissolution of marriage against the petitioner on the ground of option of puberty, cruelty of conduct, or Khula`.

3. The petitioner and respondent No. 1 are cousins inter se. The respondent (aged 17 years and 8 months at the time of filing the suit), was given in marriage to the petitioner by her mother. As alleged in the plaint, she was below the age of 16 years at the time of marriage. Rukhsati ceremony did not take place and the marriage was not consummated. The petitioner being closely related to the family of respondent No. 1 was on visiting terms of her house. The petitioner misbehaved with the plaintiff and also her parents and adopted an insulting attitude towards respondent No. 1 and her parents, thereby creating hatred in the mind of the respondent. She was subjected to mental cruelty by the petitioner's conduct.

4. The petitioner filed written statement, wherein all the allegations levelled against him by respondent No. 1 were denied. According to the petitioner, respondent No. 1 was major at the time of Nikah and was not entitled to exercise the right of option of puberty. From the pleadings of the parties following issues were framed:‑‑

"(1) Whether the suit is properly instituted and maintainable under the law?

(2) Whether at the time of filing of this suit the plaintiff was minor?

(3) Whether the Nikah of the plaintiff with the defendant was performed in her minority?

(4) Whether the plaintiff has repudiated her marriage with the defendant according to law?

(5) Whether the defendant has maltreated the plaintiff?

(6) Whether the relations between the parties are strained beyond repair?

(7) Whether the plaintiff is entitled to Khula`. If so on what terms?

(8) What should the decree be ?"

5. Respondent No. 1 in support of her claim examined herself and her mother and father. (Exs. 20, 32 and 33). The petitioner examined himself only.

6. The learned ,Family Court gave his findings on the above issues as under:‑

"Issue No. 1 Not pressed,

Issue No. 2 Not pressed

Issue No. 3 Negative

Issue No. 4 As discussed.

Issue No. 5 Negative

Issue No. 6 Affirmative

Issue No. 7 As under.

Issue No. 8 Suit decreed."

7. Learned counsel for the petitioner submitted that the judgment passed by the learned Family Judge is illegal and against the principles of Islam and has seriously erred in holding that the necessary requirement for obtaining Khula` is that the wife is liable to pay back the benefits received by her at the time of marriage. The learned Judge has "discarded" dower, which is the main factor of the Khula`.

8. Dealing first with the Islamic principles of Khula` it may be stated that A the basis and the origin of the legality of Khula` is the Qur'anic verse:‑‑

"A divorce is only permissible twice; after that, the parties should either hold together on equitable terms or separate with kindness. It is not lawful for you (men) to take back any of your gifts (from your wives) except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would B be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are. the limits ordained by Allah, so do not transgress them (Surah AI‑Baqarah, Verse 229)".

The limits prescribed by Allah in this verse mean the directions regarding a happy social life. Same is the assertion of Ta'us as well. (See Al‑ C Jassas: Ahkam al‑Qur'an, Cairo, 1335 A.H., Vol. iii, p.391; Ibn al‑Human: Fath al‑Qadir, Vol. iii, p. 199; AI‑Bukhari: Al‑Sahih, Vol. ii, p. 794).

Under this verse the following conditions must be fulfilled for the due application of the rule, viz.

(a) Apprehension of the husband and the wife that they cannot live within the limits of Allah.

(b) It is the wife who seeks a separation from the husband.

(c) It must be she who is to pay the consideration.

The verse, thus means, if there be such a dislike between the husband and the wife that it becomes difficult to lead their life in mutual love and happiness the wife may, on payment of compensation, obtain Khula` from the husband. That is, Khula` is permissible when there is no possibility for happy union between the couple and there is the apprehension that due to their extreme differences they shall not be able to live in accordance with the dictates of Shari'ah. However, if the fault lies with the husband, in the fulfilment of his obligations to his wife, the acceptance of compensation for Khula` by him is forbidden in Shari'ah. The propriety of Khula` is established from the verse in the event of such a difference between the couple that their living together becomes impossible. According to Ibn Rushd the philosophy of Khula` is that it is a right within the power of wife similar to the husband's right of divorce. Thus, when life becomes troublesome for the wife she may make use of her right of getting Khula` effected. Likewise, when some trouble arises for the husband due to the wife, he may make use of his right of divorce. Ibn Rushd: Bidayatul Mu‑jtahid , Cairo, 1379 A.H., Vol. 11, p. 68:

9. It seems beneficial to quote some of the learned Commentators of the Holy Our'an of great eminence on the aforesaid verse:

Abu `Abdullah Muhammad Al‑Ansari Al‑Qurtubi in his famour commentary, "Al‑Jami' Al‑Ahkam Al‑Quran", Cairo, 1936 A.D., Pt.iii, p. 137, has expressed the opinion that the above‑stated verse of the Holy Qur'an means that Allah made it unlawful for the husband to take any compensation for Khula` from his wife. The ground of effecting Khula` is stated to be only the apprehension that the spouses shall not be able to maintain the limits ordained by Allah. This verse demands that each of the spouses should ponder and search their hearts whether the wife shall be able to fulfil her obligations to the husband which are incumbent upon her (but which she abhors) through the marriages contract. If she cannot do so, there is nothing wrong for her in paying the compensation to her husband; neither there is anything wrong for the husband in accepting compensation for Khula` from the wife. This verse addresses the couple. The pronoun stands for both of them. It has further been said that the word "Khawf' means "Knowledge". That is to say the couple must be knowing (or understanding) that they would not be able to maintain the limits ordained by Allah. This gives them the fear of the occurrence of unpleasant events. This word "Fear" carries with .it the sense of "Presumption". It has further been argued that in the phrase "fa in Khiftum" (then if you fear) its subjects have not been named. They are the rulers (wulat). This interpretation has been adopted by Abu `Ubaydah who maintains that the words of Allah "Khiftum" (implies more than two) put, besides the couple, others as well in "fear". If it was intended only for the couple, i.e. fear exclusively for the couple, then, Allah must have as well used in the earlier expression of the verse "Khiftuma" (implies two) and this proves the fact that effecting "Khula" is the jurisdiction of Sultan (or the State through its judiciary, if the spouses do not agree between themselves).

In the above Our'anic verse, maintaining amiability of association by both (the couple) has been made incumbent (impliedly). The verse is addressed to officials acid arbitrators who, not being officials, are engaged in such affairs. A woman's not maintaining the limits ordained by Allah is her neglecting or avoiding of the performance of her duties towards her husband as well as not obeying him at all. This has been stated by Ibn' Abbas, Malik b. Anas and generality of jurists. Abu al-Hasan (al-Karakhi) and a group alongwith him are of the view that, "When the wife tells her husband that she would not obey any of his orders, or she shall not carry out any of his biddings, Khula` shall become valid." Imam Sha'fi said that the phrase, (not maintaining by the spouses of the limits of God) implies, malice, enmity, and disobedience on their part. `Ata b. Abi Rabah has said that Khula` shall be valid when the wife tells her husband. "I hate thee, I do not love thee and so on". It shall not be committing sin if the wife pays her husband any compensation for his effecting Khula`.

Al-Baydawi in his commentary on the Holy Our'an, Anwar al-Tanzil, known as Tafsir Baydawi, Mujtaba'i Press, Delhi, 1326 A.H., p. 150, has stated that it is not lawful for you that you take anything of that (i.e. the dower) what you have settled on your wives. It is stated that Jamila felt strong aversion against her husband Thabit b. Qays, she came to the Prophet of God and said, "Neither I nor Thabit are there (i.e. I and Thabit cannot co-exist); and nothing can bring our heads together (alluding to posture in intercourse). By God, I do not find fault with his piety and morality. But I hate infidelity in Islam. I cannot bear him on account of my deep aversion. I raised a corner of the flap of the tent. I saw him coming along with a few men. He was the blackest, shortest and ugliest of them all". This occasioned the revelation (of this verse). Jamila, therefore, secured Khula` from her husband restoring to. Thabit, as compensation, the garden that was given to her as dower by him. This verse is addressed to the officials because the matter of taking and giving compensation relates to them. It is they who have to pass orders regarding this matter when it is brought before them.

There is another opinion that it is addressed firstly to the couple, then to the officials. But this interpretation creates some confusion in the known form of reading and arrangement of the Our'an. If the spouses, on account of forsaking the dictates that are made incumbent upon them through their marriage contract, are not capable of maintaining the limits set by God, and if they (i.e. the officials) also consider that the couple shall not be able to maintain the limits set by God, then it should not be held sinful for the wife to get herself free by making G payment of compensation to her husband (i.e. there is no sin for the husband m accepting the compensation that the wife pays to him for getting herself released from him by obtaining Khula`. These are limits set by God. The word "Hudud" (limits) here refers to "Dictates". No one should go beyond the limits set by God.

Those who go beyond those limits they are cruel (to themselves). Putting forward the fear of punishment to prevent contravention of the dictates is sanctional. Apparently, therefore, the verse proves the fact that Khula` without unpleasantness and differences among the couple, is not valid.

Mahmud b. `Umar AI-Zamakhshari in his commentary on the Holy Qur'an known as Tafsir al-Kashaf `an Ghawamid al-Tanzil. Cairo, 1354 A.H., p. 139 quoting the above Verse (II : 229) has stated, "If it is said that the verse is H addressed solely to the Ruler and officials, it is not they who receive the compensation from or pay it on behalf of the women. I, however, maintain that it is correct to say that firstly it is addressed to the couple and secondly to the Ruler I and officials.

Al-Nasafi, too, in his commentary of the Holy Our'an, Madarik al-Tanzil (known as Tafsir Nasafi) Cairo, Vol. i, p. 148, has explained that the words "fa in Khiftum" refer to officials. 1t is firstly addressed to the couple and secondly to the officials, as under:---

10. I may also refer to the well-known decision of our Supreme Court in Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97, wherein it was held that "the wife is entitled to Khula` as of right, if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union. Where the husband disputes the right of the wife to obtain separation by Khula`, it is obvious that some third party has to decide the matter and, consequently, the dispute will have to be adjudicated upon by the Qadi, with or without assistance of the Hakams.

In the other case of Mukhtar Ahmed v. Mst. Ume Kalsoom and another PLD 1975 Lah. 805, Muhammad Afzal Zullah, J. (now, the Chief Justice of Pakistan), observed that "where the parties did not resolve their differences throughout protracted litigation despite efforts made by the Courts, grant of decree for dissolution of marriage through Khula` was justified.

11. Now adverting to the case, the learned Family Judge, while dissolving the marriage by way of Khula`, discussed in detail the concerned issue No. 6. The relevant portions from his judgment are reproduced as under:--

"I have considered the evidence brought on record by the parties and have also watched the attitude of the spouses towards each other. The plaintiff has clearly deposed that she hated the defendant and wanted dissolution. Her attitude towards the defendant during conciliation talks was also very much bostile towards the defendant and natural hatred against the defendant was quite evident from her face. This all leads me to form a firm opinion that the relations between the parties are strained beyond repair. The issue in hand is, therefore, answered in affirmative." (page 6).

The learned Family Judge further observed:‑‑

"In the present case, admittedly, the parties are close relations and are visiting each other freely after the `Nikah'. Only marital obligations have not yet been performed. The plaintiff has been practically subjected to the mental annoyance by the defendant which has resulted into hatred J against him and it can be readily inferred from the evidence brought on record that the spouses cannot live together as husband and wife within the limits of God. In my humble opinion in the present case, though no "Rukhsati" has taken place, yet it is a fit case for the grant of "Khula (page 8).

As regards the benefits received by the respondent from the petitioner, the learned Judge observed as under:‑‑

"The defendant has not produced any other evidence in support of the benefits which the plaintiff had received from him at the time of Nikah. He has only produced a receipt which has also not been produced through its author nor it can lead to any assumption that the ornaments stated by the defendant were actually given to the plaintiff, and in the circumstances I am of the view that the defendant has failed to prove exactly as to how much benefits were received by the plaintiff. However, there are admissions of plaintiff and her mother Mst. Nighat which have already been reproduced above. As the plaintiff and her mother have clearly admitted the entire benefits, in the circumstances, they can be safely relied on this point. The sum total of the benefits received by the plaintiff admitted by her and her mother are as follows:‑‑

(1) One golden Locket.

(2) One golden Chain.

(3) One pair of golden Ear‑rings.

(4) One ring golden.

(5) One pair of shoes.

(6) One make‑up box with its all items.

(7) One pair of silmen Clothes.

(8) Two watches.

(9) One suit‑case" (pages 9 & 10)

It was thus held by the learned Judge that :‑‑

"In view of the above evidence brought on record by the parties and also keeping in mind the attitude of parties during proceedings I am of considered view that their relations are strained beyond repair, and there is no probability of the spouses to live together within the prescribed limits of God, and in case `Khula' is not allowed, I am satisfied it will be forcing the parties into hateful union. Since marital obligations have not L yet been performed, it is therefore, in the circumstances of the present case the most proper time to allow `Khula`. Khula` is therefore, allowed and the plaintiff is ordered to return the above articles to the defendant."

12. Learned counsel for the petitioner placed his reliance on the case of Jindan v. Rahim Bakhsh 1985 CLC 2539, wherein a learned Single Judge of the High Court of Lahore, while considering the submission of the learned counsel for the petitioner that the issue regarding `Khula' was not properly appreciated by the learned Courts below observed that‑‑

"I have considered the arguments advanced by the learned counsel for the parties with care. I find that issue No. 6 is issue of fact. The learned Courts below having applied their conscious mind found issue against the petitioner. The Courts below have given sound and cogent reasons in support of the conclusions arrived at by them. I do not see any misreading/non‑regarding of material evidence. The mere fact that Mst. Jindan, the petitioner says that she was not prepared at all to live with her husband is not sufficient to dissolve marriage on the ground of Khula`. As far as the registration of case and her prosecution under section 498, PPC is concerned, I feel that she was responsible for that. I do not find any relevant provisions of any statute having been violated. The evidence has been appreciated in accordance with the guidelines given by the superior Courts in such like cases."

The above case hardly helps the learned counsel for the petitioner inasmuch as the learned Single Judge, in the cited case, finding no misreading of the evidence did not feel inclined to interfere into the finding of fact arrived at by the learned Family Judge in that case.

In the instant case, learned counsel for the petitioner has not been able to point out a single paragraph from the judgment impugned before me which gives the slightest indication that there has been any misreading of the evidence adduced before him or that any piece of evidence has been discarded by him or not taken into consideration. In fact, I have carefully gone through the entire judgment and it appears to be a well‑considered judgment based on cogent reasons.

13. I, therefore, find no force in the argument of the learned counsel for the petitioner that the learned Family Judge was not justified in granting Khula` to the respondent or that the judgment has been passed by him in violation of the Islamic principles of Khula`.

14. Learned counsel for the petitioner, as the last leg of his arguments, submitted that respondent No. 1 has failed to return the articles of Bari to the petitioner, on the basis of which Khula` was granted and that there was no mention in the judgment about the right of respondent No. 1 to claim dower, which right ought to have been disclaimed by her. I directed learned counsel for the respondent to seek instructions in the matter from the respondent and inform the Court next day.

15. The respondent's counsel today files a statement in writing that she forgoes the dower amount of Rs.11,000 in lieu of Khula`. The petitioner's counsel also files a statement in writing that he has received the Bari articles from the respondent as per detail given in the judgment of the lower Court. These statements are brought on record.

16. For the aforesaid discussion, the petition is dismissed in limine . Miscellaneous Application No. 61 of 1990 for restraining the respondent from contracting another marriage has become infructuous. Dismissed accordingly.

M.B.A./D‑70/K Petition dismissed.